Facts: Seventy miles north of the border, Border
Agent Lopez saw a red truck on I-15 making “erratic lane changes” and speeding.
Id. at *2. The truck had Baja California
plates. Id. Agent Lopez lost the
truck; Agent Hays picked it up soon after. Id.
The truck was going 90, then slowed to 70. When Agent Hays pulled alongside, the
truck driver – Valdes-Vega – looked straight ahead. Id. Agent Hays thought the behavior was consistent with smuggling, pulled
the truck over, searched it, and found roughly 8 kilos of cocaine. Id. Valdes-Vega’s motion to suppress was
denied by the district court, with a finding of reasonable suspicion under the “totality
of circumstances.” Id. at *2.
Valdes-Vega entered a conditional plea.

Issue(s): “Valdes-Vega
. . .appeals the district court’s
denial of his motion to suppress cocaine found in his truck.” Id. at *1.

Held: “Agent Hays's offered justification for the stop of Valdes-Vega’s
vehicle was his belief that Valdes-Vega’s behavior was ‘consistent with the
behavior of alien and drug smugglers in the area.’ We find that the totality of
the circumstances fall short of providing reasonable suspicion to believe that
Valdes-Vega was smuggling drugs or aliens. To the contrary, as discussed below,
the totality of the circumstance[s] reveal a driver with Mexican license plates
committing traffic infractions on an interstate 70 miles north of the U.S. –
Mexico Border; a description that describes too broad a category of people to
justify reasonable suspicion.” Id. at
*3.

Of Note: Our Southern colleagues will love Valdes-Vega’s refusal to demote all of
SoCal to a Fourth Amendment free zone. Id.
at *4. The district court had found that a factor supporting the search was the
fact that the stop took place seventy miles from the border. Id. Judge Pregerson correctly observes,
however, that this radius from the border effectively sweeps in all cars in San
Diego County: over three million souls in the fifth-largest county in the
United States. Id.

The Ninth, we hope, is becoming increasingly
uncomfortable with the “border exception” swallowing all Fourth rights in the
West. See United States v. Cotterman,
order re: en banc here.

How to Use:
Don’t stop at the good border holding of Valdes-Vega:
its larger value is a terrific Fourth Amendment “totality of circumstances”
analysis. Id. at *7. Judge Pregerson
considers each of the facts of the totality analysis individually, and then weighs
the probative value of each of the facts when considering them combined. Id. Makes much sense – but the analysis prompts
a dissent that accuses the majority of dodging the Supreme’s “totality” dictates
in Arvizu. Id. *8.

The opinion explains why its approach honors Arvizu, ending with the persuasive observation: “We think it
uncontroversial to say that, when viewed in totality, a collection of facts
that are each highly probative of criminal activity is more likely to support a
finding of reasonable suspicion that a set of facts which are not.” Id. at *7.

In reality, that “totality” shtick is often a whitewash, salvaging a
lousy search by blessing a jumble of innocent facts as "reasonable suspicion."
Use Valdes-Vega when fighting a
"totality" battle – it offers an intellectually honest method of untangling the
mess of facts typically offered to support bad searches.

For Further Reading:
Arvizu and its ilk value law
enforcement efficiency over our privacy interests. Why, and when, did that
shift happen? For a thought-provoking view of the roots of the "totality
of circumstances" test, see Frank Rudy Cooper, The
Un-Balanced Fourth Amendment: A Cultural Study of the Drug War, Racial
Profiling, and Arvizu, 47
Vill. L. Rev. 851 (2002).